R E V I S T A D E E S T U D I O S I N T E R N A C I O N A L E S
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Informe de la Comisión sobre la
Jurisdicción Penal Universal
Informe presentado en el Institut de Droit
International por el Relator, profesor
Christian Tomuschat (octubre de 2002).
A. I
NTRODUCTION1. At its Berlin session in 1999, the Institute established a new Commission (l7th Commission) for the study of the topic:
Universal Criminal Jurisdiction With Respect to the Crime of Genocide, Crimes Against Humanity and War Crimes.
Originally, it was decided that our confrère Theodor Meron should assume the rapporteurship of this Commission. However, after his election as a judge of the International Criminal Tribunal for the Former Yugoslavia, for obvious reasons of incompatibility he had to renounce his function as Rapporteur. To replace him, the present Rapporteur was appointed.
2. The Institute has not yet dealt with universal jurisdiction in criminal matters to the wide extent as now suggested by the man-date imparted to the 17th Commission. In the Manuel des lois de
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cluded a special part –of a very summary nature– on «penal sanc-tions» (Part Three, Articles 84-86). However, only the first one of these articles lays down provisions on punishment concerning in-dividuals, whereas the remaining two articles have as their object reprisals, in modern terminology countermeasures. In the intro-ductory chapeau of this Part of the Manuel, it is stated:
Si des infractions aux règles qui précèdent ont été commises, les coupables doivent être punis, après jugement contradictoire, par celui des belligérants au pouvoir duquel ils se trouvent.
In other words, the Institute did not take into account the even-tuality of criminal prosecution by third States. It regarded the pun-ishment of perpetrators of war crimes exclusively as a matter concerning the belligerent States involved. It appears also from the Resolution adopted in Munich in 1883 on «Règles relatives aux conflits des lois pénales en matière de compétence» that before the First World War the notion of universal jurisdiction had not yet gained firm ground in lawyers’ minds. In Article 10 of that Reso-lution, provision is made for instances where otherwise, particu-larly because the place of the commission of the crime cannot be identified, no prosecution could take place. A different philosophy underlies the Resolution adopted at the Cambridge session in 1931 on «Le conflit des lois pénales en matière de compétence». This Resolution provides in Article 5:
Tout Etat a le droit de punir des actes commis à I’étranger par un étranger découvert sur son territoire lorsque ces actes constituent une infraction contre des intérêts généraux protégés par le droit international (tels que la piraterie, la traite des noirs, la traite des blanches, la propagation de maladies contagieuses, I’atteinte a des moyens de communication internationaux, canaux, câbles sous-marins, la falsification des monnaies, instruments de crédit, etc.), a condition que l’extradition de I’inculpé ne soit pas demandée ou que l’ offre en soit refusée par l’, Etat sur le territoire duquel le délit a été commis ou dont I’inculpé est ressortissant.
This Resolution already reflects some of the concerns of the present-day world. No observer will fail to note, however, that war crimes are not mentioned there. As for crimes against
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manity and the crime of genocide, it seems that the world had to go through the abhorrent experiences of the Second World War in order to realize that the international community should establish some protective mechanisms against these types of offences.
3. At its Milan Session 1993, the 19th Commission presented a draft Resolution on «The extraterritorial jurisdiction of States» (Rapporteur: Maarten Bos)1. This draft contained one provision
on the principle of universality. It was worded as follows:
1. Under the principle of universality, jurisdiction may be exercised in order to protect certain interests of the international community as a whole.
2. Jurisdiction under the principle of universality extends to persons regardless of their nationality and the place where they committed their acts.
3. The principle of universality shall apply to offences as defined under conventional and customary international law, such as piracy, the hijacking of aircraft, terrorism and the trade of narcotics.
4. Jurisdiction under the previous paragraph may be exercised irrespective of signature or ratification of any international convention by the State of the nationality of the accused.
As can be seen from this text, the three classes of crimes which the 17th Commission is mandated to study were not taken
into account by the 19th Commission.
4. Among the major initiatives designed to clarify the meaning and scope of universal jurisdiction, one should mention in particu-lar three undertakings. First, Amnesty International has established a comprehensive documentation designed to prove that universal jurisdiction is a principle already widely recognized under interna-tional instruments and in the domestic practice of States.2 Second,
the Committee on International Human Rights Law and Practice of the International Law Association produced for its London ses-sion in 2000 a comprehensive report (written by Professor Menno
1 Ann. IDI, vol. 65-II, p. 133 at p. 135 (1994).
2 Universal Jurisdiction - The Duty of States to Enact and E1iforce Legislation,
latest amended version of 5 September 2002, accessible at <http:// web.amnesty.org /web/web.nsf/pages/legal_memorandum>.
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T. Kamminga)3, which ends with a set of conclusions and
recom-mendations. One of these propositions (2.) states that with regard to genocide, crimes against humanity and war crimes States are entitled, under customary international law, to exercise universal jurisdiction4.
5. The third remarkable achievement is the drawing up of the «Princeton Principles on Universal Jurisdiction»5. This set of
prin-ciples owes its coming into being to an initiative of the American Association for the International Commission of Jurists. Members of this Association succeeded in eliciting interest on the part of a number of leading U.S. human rights lawyers, among them Mr Cherif Bassiouni, who produced a first draft. Most reasonably, in the brochure reflecting the Principles it is openly acknowledged that some of the Principles must be located halfway between lex lata and lex ferenda6. In any event, as another collective
under-taking the Principles convey the ideas of an active group of the interested scholarly community.
B. B
ASICCONCEPTS1) Jurisdiction
6. Concerning the concept of jurisdiction, there is no need to break new ground. A number of authoritative definitions exist which need neither correction nor improvement. Thus, the Restatement of the Law Third (The Foreign Relations Law of the United States) of the American Law Institute refers to jurisdiction as «the au-thority of States to prescribe their law, to subject persons and things to adjudication in their courts and other tribunals, and to enforce their law, both judicially and non judicially»7. Our late confrère
F.A. Mann, in his Hague lectures, characterized jurisdiction as «the State’s right of regulation ... It does not matter whether it is
3 ILA, Report of the 69th Conference London, London, 2000, pp. 403-431.
4 Ibid., p. 423.
5 Princeton (New Jersey, 2001). 6 Ibid., p. 39.
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exercised by legislative, executive or judicial measures...»8. In his
draft Resolution submitted to the Institute at its Milan session 1993, our confrère Maarten Bos suggested the following definition : «Ju-risdiction is to be understood as a State’s authority to subject persons (natural or juridical) and things to its legal order» (Article 1)9. Many
other formulae could be referred to. But they would not add any-thing of essential importance. It is the sovereignty of the State which finds its reflection in the doctrine of jurisdiction. According to the Charter of the United Nations (Article 2 (1)) and to a time-honoured rule of customary international law, sovereignty has certain limits. In the UN Charter, it appears as «sovereign equality». This two-tier definition makes abundantly clear that the sovereignty of one State is confined by the sovereignty of all other States. Indeed, it is trivial to note that absolute sovereignty without any legal restrictions would lead into chaos and anarchy. International law has as one of its pri-mary functions to delimit the areas of competence (or jurisdiction) of all the States in order to ensure peaceful coexistence side by side under the rule of law, guaranteeing the sovereignty not only of the big and powerful, but also of the small States that lack any military might10. In this perspective, the rules on attribution of jurisdiction to
every State have an important role to play.
7. What is in issue here is jurisdiction to prescribe, i.e. the authority to enact legal roles making certain conduct a punishable offence under domestic law11, and jurisdiction to adjudicate, i.e.
the authority to implement the applicable law in a given case. To the extent that jurisdiction to prescribe exists for offences classi-fied as crimes against humanity, jurisdiction to adjudicate must also be deemed to exist12. Otherwise, jurisdiction to prescribe would
8 «The Doctrine of Jurisdiction in International Law», RCADI, t. III (1964-1), p.
1 at 13, now also in id., Studies in International Law, Oxford (1973), p. 1, at 6.
9 Loc. cit. (supra note 1), p. 133.
1 0 We agree with the President of the ICJ, Judge Guillaume, in his separate opinion
in the Arrest Warrant case, judgement of 14 February 2002 (paragraph 15).
1 1 See § 404 of the Restatement of the American Law Institute, op. cit. (supra note
7), p. 254: «A State has jurisdiction to define and prescribe punishment for certain offences recognized by the community of nations as of universal concern...».
1 2 See § 423, ibid,, p. 318: «A State may exercise jurisdiction through its courts
to enforce its criminal laws that punish universal crimes or other non-territo-rial offences within the State’s jurisdiction to prescribe».
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make no sense. On the other hand, however, it is clear that meas-ures of physical enforcement can be taken only by the territorially competent State or by an international organization empowered to exercise executive police powers in the territory concerned.
8. The starting point of this reflection on jurisdiction of States in criminal matters must therefore be a rejection of the Lotus doc-trine of the Permanent Court of International Justice (PCIJ). In this well-known judgment of 7 September 192713, the crucial issue
was the right of Turkey to try a French officer, whose ship, the Lotus, had collided with a Turkish ship, thereby causing the death of eight Turkish seamen. France contended that as the flag State of the ship on which the responsible officer had performed his service, it enjoyed exclusive jurisdiction. The PCIJ rejected this argument, holding that:
Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory it [international law] leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive roles; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable14.
According to this pronouncement, States would be free to adopt extraterritorial legislation and take measures with extraterritorial effect as they see fit, unless a specific prohibitive rule prevents them from acting as planned. Clearly, this proposition has been overruled during the last decades. There is broad agreement in the practice of States as well as in the legal literature that States need specific justification if they seek to extend the legal effects of their sovereign acts beyond their borders15. Thus, the order of
priorities has been reversed. Whereas according to a traditional doctrine of sovereignty the powers of States were in principle unlimited, the prevailing view today requires States to show a
spe-1 3 Series A No. 10. 1 4 Ibid., p. 19.
1 5 See as a representative statement of the legal position the Restatement of the
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cial interest if and when they act extraterritorially. In international criminal law, it has become communis opinio that acts of prosecu-tion can be legitimated by a limited number of principles, (1) the territorial principle, (2) the active personality principle, (3) the pas-sive personality principle (controversial), (4) the effects principle, (5) the protective principle, and (6) the principle of universal juris-diction. States do not enjoy unfettered jurisdiction as long as no rule to the contrary can be held against them16.
2) Universal Jurisdiction
9. The concept of universal jurisdiction is less uncontroversial. In the first place, it should be underlined that universal jurisdiction must be distinguished from jurisdiction vested in international tri-bunals. Universal jurisdiction means putting domestic courts (and of course the relevant prosecuting authorities) at the service of the international community. Relying on universal jurisdiction, na-tional courts may, without requiring any more specific authoriza-tion from an internaauthoriza-tional body, initiate criminal proceedings against an alleged offender. From a systematic viewpoint, universal juris-diction constitutes a half-hearted device in the absence of compe-tent international institutions. In that sense, universal jurisdiction can be compared to the rights deriving from obligations erga omnes, a concept which permits individual States to take measures for the defense of the interests of the international community, not against individuals, but against States. With the establishment of truly international tribunals the notion of international community gains strength and coherence. The existing international criminal tribunals –the International Criminal Tribunal for the former Yu-goslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Court (lCC) under the Rome Statute of 1998 are all creations of the international community, and they act accordingly for a common purpose. In principle,
there-1 6 Ambiguous statements on the Lotus doctrine by Paola Gaeta, «Les règles
internationales sur les critères de compétence des juges nationaux», in Anto-nio Cassese/Mireille Delmas-Marty (eds.), Crimes internationaux et
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fore, the States which make up the international community have good reasons to believe in the trustworthiness of the judicial mecha-nisms which they themselves have brought into being. Although some States, in particular the United States of America (hence-forth: United States), now reject the Rome Statute, it cannot be overlooked that they were all given the opportunity to participate in the negotiations and in the drafting exercise by presenting their proposals and voicing their objections. The fact that not all of the suggestions put forward by the current dissenters were accepted17,
does not mean that the construction as such is faulty. In no inter-national decision-making process can just one of the participants demand or expect that his views prevail without any exception.
10. The higher degree of trustworthiness to be granted to in-ternational criminal tribunals than to national courts of States is reflected, e.g., in the Resolution adopted by the Institute at its Vancouver Session where it suggested (Article 2) that a Head of State should enjoy, in criminal matters,
immunity from jurisdiction before the courts of a foreign State for any crime he or she may have committed, regardless of its gravity.
On purpose, this rule was not extended to proceedings before any of the existing international criminal tribunals (Article 11 (1)), where equality before the law applies without any exception. Al-ready in the Charter of the International Military Tribunal at Nu-remberg18 a provision (Article 7) made it clear that:
the official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.
1 7 Yet, many were accepted, see statement by U.S. Ambassador D. Scheffer,
reproduced by Hans-Peter Kaul, «The Continuing Struggle on the Jurisdiction of the International Criminal Court», in Horst Fischer et al. (eds.), International
and National Prosecution 01 Crimes Under lnternational Law, Berlin (2001),
p. 21 at p. 23.
1 8 Reprinted in Ingo von Münch, Dokumente des geteilten Deutschland, Stuttgart
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There is no need to elaborate on the continuance in force of this rule, which now appears in Article 27 of the Rome Statute.
11. Some authors have taken the view that the concept of universal jurisdiction should not be used in instances where pros-ecution presupposes a territorial link of the suspect with the forum State. On that ground, they seek to distinguish situations falling within the scope of one of the many try-or-extradite clauses in international treaties from universal jurisdiction proper. Thus, our
consoeur Dame Rosalyn Higgins has defended the view that
«uni-versal jurisdiction, properly ca11ed, allows any State to assert ju-risdiction over an offence»19.
M. Cherif Bassiouni has taken a similar stance20 Of course,
every writer is free to coin the concepts he/she is handling ac-cording to his/her preferences as long as there exist no authorita-tive definitions. However, it does not appear that cases judicially dealt with under the rule «to try or to extradite» should be ex-cluded from the scope of the concept of universal jurisdiction. What must be explained and justified is the fact that under that specific title of jurisdiction the judiciary of a given State is empow-ered to seize itself of an offence with which it has no genuine link. Persons may be tried regardless of the location of the place where the offence was committed, regardless of the nationality of the suspect or the victim, and even regardless of an actual, palpable interest of the prosecuting State. Under normal circumstances, such operations would amount to interference in the domestic af-fairs of the third State(s) concerned. As a rule, occurrences in a given State that have no direct transboundary effect do not fall within the competence of other States. Just the presence of an
1 9 «International Law and the Avoidance, Containment and Resolution of
Dis-putes. General Course on Public International Law», RCAD, t. 230 (1991-V), p. 9 at p.99. See also the joint separate opinion of Judges Higgins, Kooijmans and Buergenthal in the Arrest Warrant case ,judgment of the ICJ of 14 February 2002, para. 41 : «By the loose use of language the latter [scil. to try or to extradite] has come to be referred to as ‘universal jurisdiction’, though this is really an obligatory territorial jurisdiction over persons, albeit in relation to acts committed elsewhere».
2 0 «Universal Jurisdiction for International Crimes: Historical Perspectives and
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alleged offender in the territory of a State does not establish, as such, a genuine link of that State to the crime in issue.
12. It is true, however, that universal jurisdiction has a differ-ent meaning according to whether States may be considered free to prosecute anyone anywhere just on the basis of his/her alleged conduct or whether at least the presence of the alleged offender in their territory is required (forum deprehensionis). This was one of the issues raised by the Arrest Warrant case before the ICJ21, but which was not touched upon by the ICJ itself. Only in
the separate opinions of Judges Guillaume, Ranjeva and Rezek and the joint separate opinion of Judges Higgins, Kooijmans and Buergenthal does one find lengthy considerations on the scope
ratione materiae of universal jurisdiction. Universal jurisdiction
in the broad sense is termed «compétence universelle par défaut» by Judge Guillaume22, «universal jurisdiction in absentia» or
«compétence universelle in absentia» by Judges Higgins, Kooijmans and Buergenthal23, and by Judge Ranjeva24, and
«ab-solute universal jurisdiction» by Antonio Cassese in a comment on the judgment25. According to the interpretation adopted by the
Belgian investigating judge who issued the controversial arrest warrant against the former Congolese Foreign Minister Yerodia Ndombasi, Belgian legislation conferred indeed jurisdiction on the judiciary to institute criminal proceedings against persons charged with war crimes, genocide or crimes against humanity irrespec-tive of their place of sojourn although the text of the relevant pro-vision of domestic law did not say so specifically26. In recent
deci-2 1 Judgment of 14 February 2002. 2 2 Ibid., separate opinion, paras. 9,16,17. 2 3 Ibid., joint separate opinion, para. 59. 2 4 Ibid., declaration, para. 5.
2 5 «When may Senior State Officials Be Tried for International Crimes? - Some
Comments on The Congo v. Belgium Case», http://www.ejil.org/journal/ curdevs.htrnl. The more limited form of universal jurisdiction is called »conditional jurisdiction» by Cassese. See also his considerations in «Y a-t-il un conflit insurmontable entre souveraineté des Etats et justice pénale internationale?», in Crimes internationaux et juridictions internationale?, op.
cit. (supra note 16), pp. 13-29 at 22-26.
2 6 Loi relative a la répression des infractions graves aux conventions
internationales de Geneve du 12 août 1949 et aux protocoles I et II du 8 juin 1977, additionnels à ces conventions, of 16 June 1993, amended by: Loi
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sions, however, this interpretation has been rejected. The Belgian judiciary now takes the view that the prosecuted persons must be present in the Belgian territory27.
13. In Germany, too, the highest judicial body in criminal mat-ters, the Federal Court (Bundesgerichtshof), held in its judgment of 30 April 199928 that notwithstanding the invokability of
univer-sal jurisdiction in cases of genocide a special link with Germany was required, which it found in the fact that the accused had lived in Germany for long periods of time29. It argued that without any
such link the principle of non-intervention would be breached. This decision was criticized in legal doctrine30, and indeed the same
chamber of the Federal Court opined in a judgment of 21 Febru-ary 200131 that no special link might be necessary where
Ger-many was obligated under an international treaty like the four Geneva Conventions of 1949 to initiate criminal proceedings. It remains, however, that with regard to all other instances, in par-ticular with regard to genocide, the German jurisprudence has opted against an understanding of universal jurisdiction in the broad sense as originally advocated in Belgium.
14. The try-or-extradite clauses, which establish the jurisdic-tion of the State of sojourn or custody as a duty which must be
relative à la répression des violations graves du droit international humanitaire, of 10 February 1999. Article 7 (1) of that Law provides: »Les juridictions belges sont compétentes pour connaître des infractions prévues à la présente loi, indépendamment du lieu ou celles-ci auront été commises».
2 7 Judgment of the Cour d’appel de Bruxelles, Chambre des mises in accusation,
26 June 2002, in the Sharon and Yaron case. See also below in the annex a short overview of the legal position in Belgium.
2 8 BGHSt 45, 64, at 66 ; Neue Juristische Wochenschrift (2000), p. 2517. 2 9 The German Constitutional Court, decision of 12 December 2000,
Euroäpaische Grundrechte Zeitschrift (2000), p. 76 at p. 82 (section III. 6),
avoided to make a determination on the issue.
3 0 Kai Ambos/Steffen Wirth, «Genocide and War Crimes in the Former
Yugos-lavia Before German Criminal Courts», in Fischer et al. (eds.), lnternational
and National Prosecution of Crimes ..., op. cit. (supra note 17), p. 769 at pp.
778-783; Gerhard Werle, case comment, Juristenzeitung (1999), p. 1181 at pp. 1182-1183; «Völkerstrafrecht und geltendes deutsches Strafrecht»,
Juristenzeitung (2000), p. 755 at p. 759.
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complied with, do not clear1y answer the question since they do not say anything about the rights of third States which are not even related to the crime by the tenuous link of the presence of the alleged offender in their territory. Therefore, on the basis of conventional law it remains open whether any third State could in such instances start proceedings and request the extradition of the suspect. It seems reasonable to require that at some point in time the prosecuting State must establish close contact with the de-fendant. Generally, trials in absentia cannot be deemed to yield just results. The «try-or-extradite clauses» have precisely for their aim to reconcile the principle of universal jurisdiction with the le-gitimate rights of an alleged offender32. In any event, judicial practice
does not seem to support an unrestricted right of any third State unrelated to the crime to initiate proceedings against an alleged offender33.
15. In the legal literature, there is broad agreement as to the legitimation of universal jurisdiction. Crimes that may be prosecuted by relying on universal jurisdiction, in particular the «core crimes» dealt with in this report, affect the foundations of a civilized state of affairs in the international community. Therefore, it can rightly be said that the pivotal element of universal jurisdiction is nothing else than the nature of the crime34. Proceeding from the premise
3 2 Underlined by the Cour d’ appel de Bruxelles, Chambre des mises en
accusation, 26 June 2002, in the Sharon and Yaron case (supra note 27), point 9. On this issue, we cannot share the views expressed by Judges Higgins, Kooijmans and Buergenthal in their joint separate opinion in the
Arrest Warrant case (supra note 19), para. 56.
3 3 This is al so the prevailing opinion in the legal literature, see Bassiouni, loco
cit. (supra note 20), p.81 at p.139; W olfgang WeiB, «Wikerstrafrecht
zwischen Weltprinzip und Irnmunität», Juristenzeitung (2002), p. 696 at pp. 699-70 l. The judges of the ICJ who touched upon the issue in their individual opinions were divided. Whereas Judges Higgins, Kooijmans and Buergenthal, paras. 54-59, advocate universal jurisdiction in the absolute sense, Judges Ranjeva (para. 5) and Rezek (paras. 8-9) require the presence of the accused in the territory of the prosecuting State. Antonio Cassese,
lnternational Law, Oxford (2001) p. 261-262, tried to find a balanced midway
solution and has remained faithful to this line in Cassese/Marty, loco cit. (supra note 16).
3 4 See, for instance, The Princeton Principles on Universal Jurisdiction (supra
note 5), Principle 1 (1); Kenneth C. Randall, «Universal Jurisdiction Under International Law», 66 Texas LR (1988), p. 785 at p. 788.
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that there exists an international community, conceived of prima-rily as a community of common values, it is assumed that, in prin-ciple, every State has an interest in taking measures to repress offences which threaten the maintenance of basic rights for all human beings. To restrict jurisdiction to States authorized to act under any of the classical principles governing jurisdiction and to States in whose territory the accused is present may be consid-ered as a compromise which reconciles the interests of the inter-national community with the legitimate interests of any alleged offender.
3) Criminal Jurisdiction
16. At first glance, it seems easy to define the word«crimi-nal». According to habitual linguistic usage, that word, in connec-tion with the concept of jurisdicconnec-tion, denotes the prosecuconnec-tion of offences by the judiciary of a given State. In criminal proceedings, it is the power of the State which asserts its sovereign right to secure law and order. Consequently, a criminal trial ends up not just with a decision ordering the defendant to do this or that, but imposing on the defendant, if he/she is not acquitted, a fine or sentencing to him to a penalty of deprivation of liberty. But recent practice has produced hybrid forms of judicial actions the classifi-cation of which gives rise to doubts. The most prominent example of such a hybrid form of judicial action is authorized by the United States Alien Tort Claims Act (ATCA), a statute enacted in 178935
which was re-discovered in 1980 in the Filártiga v. Peña Irala case36. On the basis of the ATCA, an alien can bring a tort action
against a respondent by alleging that the respondent has breached obligations incumbent upon him/herself under the law of nations. Textually, the ATCA provides: «The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States». There can be no doubt that intrinsically cases brought under the ATCA are civil and not criminal cases. What the claimant seeks is
3 5 Codified as 28 U.S.C. § 1350.
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reparation for the wrongs he has suffered, not punishment of the respondent. Nevertheless, such cases are characterized by a strong element of retribution. The United States puts its tribunals at the disposal of aliens with a view to facilitating effective sanctioning of the alleged offences.
Recently, for instance, claims have been introduced before United States tribunals which seek billions of dollars of reparation for the alleged involvement of European undertakings in the South African economy during the time of the apartheid regime.
17. Many writers refer indeed to the ATCA in connection with universal jurisdiction in criminal matters. Thus, Antonio Cassese recently wrote that the United States was the country whose na-tional courts have taken the most vigorous action against crimes committed abroad.
They have taken from the shelf and skilfully dusted off a statute passed in 178937.
In other words, he conceives of the ATCA as an instrument designed to permit the imposition of sanctions on account of inter-national crimes38. In a more general fashion, United Nations High
Commissioner for Human Rights Mary Robinson expressed her concern over the negotiations in the framework of the Hague Conference on Private International Law on a new Convention on International Jurisdiction and Foreign Judgments in Civil and Commercial Matters. According to the clauses of that draft in-strument, which is currently under consideration, in tort cases no action could be brought in the courts of a third State unrelated to the factual events having caused the damage (Article 10). To the High Commissioner, the regime governing civil actions that claim reparation in instances of international crimes pertains to the overall legal framework serving to combat such crimes39. Along similar
3 7 «International Criminal Justice: Is it Needed in the Present World
Community», in Gerard Kreijen (ed.), State, Sovereignty, and International
Governance, Oxford (2002), pp. 239-258 at p. 242.
3 8 In a recent article, he speaks of «humanitarisme impérialiste», loc. cit. (supra
note 25), p. 25.
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lines, lawyers actively promoting remedies against perpetrators of serious crimes are trying to convince their audiences that the de-marcation line between civil and criminal remedies cannot be maintained since according to the legislation of many countries both remedies go hand in hand when a tort has been committed40.
Indeed, the ATCA seems to constitute a direct offspring of the doctrine of international crimes. Only by clinging thereto can the United States possibly justify its claim to jurisdiction41.
4) Jus Cogens and Universal Jurisdiction
18. However, it would be much too simplistic to argue that all offences that may legitimately be classified as international crimes are subject to universal jurisdiction. Yet, many writers follow that logic, which is indeed extremely tempting. Christopher Joyner is one of those who support the notion that universal jurisdiction flows automatically from the violation of norms which have a jus
co-gens or erga omnes character42. Mr Cherif Bassiouni has
force-fully advocated the same idea43. In the Pinochet case, Lord
Browne-Wilkinson44, Lord Hutton45 and Lord Millet46 joined that
current of opinion, and recently Antonio Cassese has advocated extending universal jurisdiction to all international crimes47. It must
be admitted that these authors have identified a legitimate starting
4 0 See, in particular, Beth Stephens, «Translating Filártiga: A Comparative and
International Law Analysis of Domestic Remedies for International Human Rights Violations», 27 Yale JIL (2002), pp. 1-57.
4 1 Explicitly, in their joint separate opinion in the Arrest Warrant case (supra
note 19), Judges Higgins, Kooijmans and Buergenthal note that the exercise by American federal courts of the powers granted to them by the ATCA «has not attracted the approbation of States generally» (para. 48).
4 2 «Arresting Impunity : The Case for Universal Jurisdiction in Bringing War
Criminal to Accountability», 59 Law and Contemporary Problems (1996), pp. 153 at p. 169.
4 3 Loc. cit. (supra note 20), pp. 148-152.
4 4 See his opinion in the second judgment of24 March 1999,38 ILM (1999), p.
582 at p. 589.
4 5 Ibid., p. 627 at pp. 636-637. 4 6 Ibid., p. 643 at pp. 649-650.
4 7 In Crimes internationaux et juridictions internationales, loc. cit. (supra note
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point. On the other hand, however, acceptance or rejection of universal jurisdiction cannot be based solely on the interests of the international community in forestalling and repressing grave crimes that threaten full enjoyment of human rights by the victims. A well-pondered answer must also take into account the interests of the potential defendants and of the States which may be indirectly charged if and when proceedings are instituted against one of their representatives. Joy over the progress which has been at-tained by acknowledging universal jurisdiction within a relatively broad scope ratione materiae should not detract from the simple realization that universal jurisdiction can easily be abused. Only in few countries is the judiciary genuinely independent from the ex-ecutive branch of government. And even where this is the case, it should not be overlooked that judges are more often than not bi-ased in favour of their own country. This has nothing to do with miscarriage of justice. However, it is a fact of life, empirically corroborated, that judges normally have greater understanding for the viewpoint and the interests of their own country than for the views articulated by someone belonging to a different political system. Rightly, in our view, in the Pinochet case Lord Slynn of Hadley cautioned against equating crimes under international law with universal jurisdiction:
That international law crimes should be tried before international tribunals or in the perpetrator’s own state is one thing ; that they should be impleaded without regard to a long-established customary international law rule in the Courts of other States is another ... The fact even that an act is recognised as a crime under international law does not mean that the Courts of all Sta te s have jurisdiction to try it ...There is no universality of jurisdiction for crimes against international law...48.
19. Almost without any exception, when dealing with these issues, writers talk about the necessity to combat international crime and the corresponding perpetrators as effectively as possi-ble. But it should not be overlooked that during the decisive first
4 8 First judgment of the House of Lords, 25 November 1998,37 ILM (1998), p.
1302 at pp. 1312-1313 [recalled by Judge Guillaume in his separate opinion in the Arrest Warrant case, supra note 10, para. 12].
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stages of a criminal proceeding any person can invoke the pre-sumption of innocence. An indictment is based on allegations which are not yet proven. And yet, measures may then be taken which severely interfere with the rights of an alleged offender. In par-ticular, he/she can be arrested or extradited to a foreign country, far away from his homeland where legal defense may be difficult to obtain and costly49. The legal system of Ruritania does not
pro-vide the same guarantees as the legal systems of France, Ger-many or the United Kingdom50. To date, scenarios have generally
been developed according to which courts of Western States pros-ecute offences committed elsewhere on the globe, especially in Third World countries. The proceeding between the Congo and Belgium in the Arrest Warrant case, which ended with the judg-ment of the International Court of Justice of 14 February 2002, constitutes the prototype of that configuration, which smacks slightly of neo-colonialism But the procedural relationship could also be reversed, Belgian citizens being arrested and brought to trial in the Congo, to give just an example which is suggested by the proceed-ing before the ICJ51.
5) Possible Abuse of Universal Jurisdiction?
20. Fears that abuse may mar the exercise of universal juris-diction have no tangible bases regarding the crime of genocide. Genocide has relatively clear-cut contours, above all after the first judgments of the ICTY and the ICTR. It would be difficult to manipulate a charge of genocide in any plausible fashion. Regard-ing war crimes and crimes against humanity, however, no such straightforward statement can be made. In the Rome Statute,
4 9 For a head-on attack on universal jurisdiction, see Henry Kissinger, «The
Pitfalls of Universal Jurisdiction», Foreign Affairs (July/August 2001), pp. 86-96.
5 0 In this regard, the joint separate opinion of Judges Higgins, Kooijmans and
Buergenthal in the Arrest Warrant case (para. 59) seems to be somewhat
ingénue in positing that such extraterritorial charges «may only be laid by a
prosecutor or juge d’instruction who acts in full independence, without links to or control by the government of that State».
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crimes against humanity (Article 7) and particularly war crimes (Article 8) have grown to such an extent that even for a trained lawyer it is now difficult to correctly assess the scope ratione
materiae of these offences. Given the fact, above all, that the
Rome Statute acknowledges also command responsibility (Article 28) and complicity in the most various forms (Article 23 (3)) and that this extension of criminal responsibility will also –unavoid-ably– spill over into general international law, it is not difficult to construct a case against a political leader who has never had any direct contact with the relevant atrocities.
21. Concerning crimes against peace or aggression, which fig-ured prominently in the Charter of the Nuremberg International Military Tribunal52, these considerations have been deemed to be
so weighty that it has never been suggested that they should be subject to universal jurisdiction. When the International Law Com-mission (ILC) adopted on first reading (1991) the draft Code of Crimes against the Peace and Security of Mankind, it acknowl-edged that aggression could not be dealt with in the same manner as the other crimes identified by it. Explicitly, the relevant provi-sion (Article 15) stated in para. 5, which was bracketed due to disagreement within the ILC that «any determination by the Secu-rity Council as to the existence of an act of aggression is binding on national courts»53. Notwithstanding the lack of clarity affecting
this formula, the sole fact that a special provision was considered necessary evinced that the suggested obligation to try or to extra-dite (Article 6) was not to apply unreservedly in instances of alle-gations of aggression54. The reluctance to align aggression with
the other crimes under the projected Code became even more visible in the final version of the draft Code, which was adopted in 199655. Whereas Article 8 contained an obligation on States to
establish their jurisdiction over genocide, crimes against humanity,
5 2 Reprinted in von Münch (ed.), Dokumente..., op. cit. (supra note 18), p. 45;
Article 6 of the Charter is also reproduced in Adam Roberts/Richard Guelf (eds.), Documents of the Laws of War, 3rd ed., Oxford (2000), p. 177.
5 3 Yearbook of the ILC 1991, Vol. II, Part Two, p. 96.
5 4 For the commentary on that bracketed provision see Yearbook of the ILC
1988, Vol. II, Part Two, p. 73 para. 6.
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crimes against United Nations and associated personnel, and war crimes, it reserved the case of aggression by specifying that inso-far jurisdiction «shall rest with an international criminal court». Quite obviously, it was the fear of political manipulation which led the ILC to taking this decision. No other reason can be found behind the determination by the Rome Conference in 1998 to lay to rest aggression until some remote day when a substantive defi-nition might have been found (Article 5 (2». It is this separate treatment of the crime against peace par excellence which am-ply demonstrates that suggesting any proposition on the relation-ship between jus cogens or erga omnes obligations and universal jurisdiction requires a most careful balancing of the interests in issue.
C. T
HED
IFFERENTI
NTERNATIONALC
RIMES22. After these preliminary observations, the three classes of international crimes committed to the attention of the Commission require to be studied in detail. Although genocide, crimes against humanity and war crimes are often dealt with as a unity («core crimes»), it would be wrong to follow those steps. Each one of the three crimes, which in reality are clusters of crimes, is subject to a specific regime. General international law and conventional law are bound up with one another in widely varying ways.
1) Genocide
23. It is a matter of common knowledge that genocide did not yet appear as a separate class of crime in the Charter of the Nu-remberg International Military Tribunal. All the relevant acts, which today would be evaluated as genocide, were dealt with under the heading of crimes against humanity. Genocide received its spe-cific conceptual identity by virtue of the Convention on the Pre-vention and Punishment of the Crime of Genocide, which the UN General Assembly adopted on 9 December 194856. No trace can
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be found in the text of the Convention of universal jurisdiction. Article VI was framed with remarkable caution. It reads:
Persons charged with genocide or any of the other acts enumerated in Article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.
This provision can be construed differently. A literal reading might suggest that Article VI was framed with a view to restrict-ing jurisdiction in instances of genocide to the territorial State and to an international penal tribunal. Following this approach, Article VI would have to be understood as a prohibition addressed to any other third State to claim jurisdiction. This is indeed a view which seems to reflect the intentions which were pursued during the drafting process. In a recent monograph, William Schabas has attempted to buttress that restrictive interpretation by sifting the
travaux preparatoires57.
24. However, the Eichmann case made clear that Article VI must be assigned another meaning. Eichmann, a Nazi activist who saw his personal fulfilment in bringing about the «final solution» of the Jewish question, was made accountable before Israeli tribunals after having been brought surreptitiously from Argentina to Israel. Understandably, Eichmann defended himself by contesting the ju-risdiction of the courts which tried him. This defense failed. Both the courts of first58 and second instance (the Supreme Court of
Israel)59 invoked universal jurisdiction, arguing that Article VI was
confined to setting forth a duty to prosecute, which was incumbent upon the territorial State, but no other (third) State. This interpreta-tion has been wideIy accepted, although some voices rightly draw attention to the fact that Israel’s prosecution of Eichmann could have been easiIy justified by the passive personality principle or the protective principle60. Whatever opinion one may have regarding
5 7 W.A. Schabas, Genocide in lnternational Law, Cambridge (2000), pp. 355 ff. 5 8 District Court of Jerusalem, judgment of 12 December 1961,36 ILR, at p. 39 p. 25. 5 9 Judgment of 29 May 1962, ibid., pp. 303-304.
6 0 See Bassiouni, loc. cit. (supra note 20), p. 137; Princeton Principles, op. cit.
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the foundations of the Eichmann trial, it would appear to be crystal clear that the Genocide Convention did not wish to take away op-tions for action which are available under general international law. It would indeed be rather strange if Article VI had to be construed as banning, with regard to genocide cases, the passive personality principle and the protective principle. The elaboration of the Con-vention was meant as a step to strengthen the fight against geno-cide. If one followed the restrictive interpretation, however, States parties would be worse off than third States not having ratified the Convention. The absurdity of this result speaks against it.
25. Rejection of a restrictive reading of Article VI does not answer the question, however, if genocide is a crime placed under universal jurisdiction. As pointed out above, universal jurisdiction is a power, a faculté, which States are free to exercise or not to exercise, unless there exists a conventional duty to the contrary. In the absence of a clear indication in the Convention itself, the answer must be sought in general international law. Following the traditional method of identifying rules of customary international law, the student is called upon to review, in the first place, the relevant practice of States. In that regard, the record was ex-tremely poor for long decades. Reference could be made, in the first place, to the Eichmann case. In a second case, the 1985 case of Demjanjuk, United States tribunals granted a request by Israel for the extradition of a person who was suspected of having committed indescribable atrocities in a concentration camp during the Second World War61. In recent years, however, the picture
has changed. In Germany, in at least four cases perpetrators of genocide were sentenced to life imprisonment or long years of deprivation of liberty. Invariably, the Supreme Federal Court, which discharges the functions of a Cour de cassation, confirmed the convictions and sentencing62. In pronouncing upon a constitutional
6 1 776 F.2d 571, 582-583 (6th Cir. 1985), cert. denied, 475 U.S. 1016 (1986). 6 2 For a summary, see the ILA Report, supra note 3, pp. 428-429 : case of
Nikola Jorgic, Supreme Federal Court, 30 April 1999, Entscheidungen des Bundesgerichtshofs in Strafsachen (BGHSt) 45, 64 Neue Juristische Wochenschrifl (2000), p. 2517 ; case of Maksim Sokolovic, Supreme Federal
Court, 21 February 2001, ibid. (2001),p. 2728; case of Djuradi Kusljic, Supreme Federal Court, 21 February 2001, ibid. (2001), p. 2732.
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complaint by one of the convicted perpetrators (Nikola Jorgic), the Federal Constitutional Court explicitly supported the applica-bility of universal jurisdiction to genocide.63 Austrian64 tribunals,
too, have unequivocally affirmed their right to exercise universal jurisdiction with regard to instances of alleged genocide although in the case that has been reported the accused was acquitted. In a French case of 1998, the Cour de cassation confined itself to stating that the Genocide Convention does not provide for univer-sal jurisdiction, but refrained from examining whether French ju-risdiction may exist under general international law65.
26. The list of relevant judgments may not be long, but none of the pronouncements has been seriously objected to, except by the defendants in the cases at hand. Thus, there exists a consistent practice which seems to be buttressed by an opinio juris that stands almost unchallenged.
27. Lastly, it should be noted that the legal position has changed under the impact of the Rome Statute. There is no denying the fact that the International Criminal Court itself does not enjoy uni-versal jurisdiction, not even with regard to genocide. Its jurisdic-tion depends on the territorial State (the State where the crime was committed) or the State of nationality of the suspect having accepted the commitments under the Statute, except for situa-tions which have been referred to it by the Security Council (Ar-ticle 13 (b))66. But if this is the case it can request the surrender of
the suspect from any State party to the Statute. This system works only if third States, which have no special link with the crime but are involved solely through the presence of the suspect in their territory, are authorized to take action against the suspect by
ar-6 3 Decision of 12 December 2000, Europäische Grundrechte Zeitschrifl (2001),
p. 76 at p.81.
6 4 Case of Dusko Cvjetkovic, see ILA Report 2000, loc. cit. (supra note 3), p.
426.
6 5 Case of Wenceslas Munyeshyaka, Cour de cassation, 6 January 1998, 102
RGDIP (1998), p. 825 at p. 827.
6 6 During the preparatory work on the Rome Statute, Germany proposed that
the ICC be vested with universal jurisdiction without any preconditions (see UN doc. AlAC.249/1998/DP.2, 23 March 1998). This proposal, however, was defeated.
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resting him/her in the first place, before possibly granting the re-quest addressed to them. In other words, universal jurisdiction of national courts is a logical premise of the worldwide mechanism brought into being by the Rome Statute. In fact, the Statute recalls in its preamble that «it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes». This is certainly a wrong statement. There exists no duty of States generally to prosecute international crimes. To rebut this asser-tion, it suffices to refer to the Genocide Convention which explic-itly confines the duty of prosecution to the territorial State, the State where acts of genocide were committed. Wherever univer-sal jurisdiction is accompanied by a duty to exercise it in any given case, the drafters of the relevant conventions specifically said so. Even these clauses have often been ignored. All observers agree that the system of universal jurisdiction has not been too effective in the past67. Consequently, it would be vain to look for a practice
which might sustain a rule of customary law of which the state-ment in the preamble of the Rome Statute could be the reflection. All this, however, does not detract from the conclusion that the system of international criminal justice as envisaged by the draft-ers of the Rome Statute would not be satisfactorily workable if States did not enjoy universal jurisdiction with regard to all the crimes listed in the Statute.
28. It stands to reason that the above considerations apply only to States parties to the Rome Statute. All other States may invoke the traditional rule according to which pacta tertiis nec
nocent nec prosunt (Article 34 Vienna Convention on the Law
of Treaties). The absence of a considerable number of States must be taken all the more seriously since what we are facing is not a matter of passivity or oblivion, but a dispute touching upon issues of principle. The United States and some other States disagree fundamentally with the policy line embarked upon with the Rome Statute. Furthermore, universal jurisdiction as an auxiliary func-tion in the service of the ICC cannot be equated with universal jurisdiction tout court.
6 7 See, in particular, Rafaëlle Maison, «Les premiers cas d’application des
dispositions pénales des Conventions de Genève par les juridictions inter-nes», 6 EJIL (1995), p. 260 at p. 263.
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29. On the other hand, it should al so be noted that the rejec-tion of the Rome Statute by the United States does not affect the principle of universality with regard to genocide. Although the American Restatement of the Law68 is not a governmental act, it
widely reflects positions held by the United States Government. In this regard, it is significant that § 404 of the Restatement men-tions genocide as one of the offences for which universal jurisdic-tion exists. Furthermore, reference should be made again to the case of Demjanjuk69, where a United States court, i.e. an official
institution of the governmental apparatus, explicitly acknowledged that any nation may seek to punish the perpetrators of that crime. There are no clues indicating that the United States has changed its position. Nor are there any indications suggesting that other States have taken a restrictive stance concerning genocide.
30. In concluding this section, reference should finally be made to the simple fact that genocide is the most horrendous of all crimes under international law. As the ICJ pointed out in its legal opinion of 28 May 1951, genocide «shocks the conscience of mankind» and is «contrary to moral law and to the spirit and aims of the United Nations». From these propositions, the ICJ drew the con-clusion that «the principles underlying the Convention are princi-ples which are recognized by civilized nations as binding on States, even without any conventional obligation»70. Given the weight of
this statement, added to the existing practice, it can be safely said that universal jurisdiction for the crime of genocide can be af-firmed as a rule of positive international law.
31. It remains open, though, whether prosecution requires as a minimum contact the presence of the alleged offender in the terri-tory of the prosecuting State. If no such link is deemed to be re-quired, issues of conflicting jurisdiction may arise. According to a
6 8 Op. cit. (supra note 7), p. 254. 6 9 Supra, note 61.
7 0 Reservations to the Convention on Genocide, ICJ Reports (1951) p. 15 at
23. It is well known that the Court has reaffirmed this proposition in recent years, see Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 8 Apri11993, ICJ Reports (1993), p. 3 at p. 23 para. 49.
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judgment of the Spanish Audiencia Nacional of 13 December 2000 in the Guatemalan genocide case, a State not directly related to an alleged crime of genocide is debarred by the principle of subsidiarity from commencing criminal proceedings if the matter is being actively pursued in the territorial State concerned71. This
principle was derived by the Court from Article VI of the Geno-cide Convention in conjunction with the provision of the Rome Statute (Artic1e 17) on the principle of complementarity. While Artic1e VI of the Genocide Convention certainly cannot be relied upon to support a rule of subsidiarity, since it deals with a different issue, namely a possible duty to prosecute, the reference made to Artic1e 17 of the Rome Statute is more pertinent. It could indeed be maintained that States that hold jurisdiction according to the c1assic principles of jurisdiction (territoriality, nationality etc.) should enjoy priority for the investigation and prosecution of the relevant facts. It does not seem to be unreasonable to grant a privileged position to States which have suffered direct injury. On the other hand, such arrangement should not favour impunity. Not infre-quently, the authorities of the State having the closets links to the offence refrain from seriously committing themselves to search-ing for the truth and dischargsearch-ing their duties. The charges brought in Spain against the major Guatemalan war criminals provide an example in point. To date, more than three and a half years after the publication of the report of the Commission for Historical Clari-fication, no action has been taken in Guatemala against the al-leged perpetrators of genocide.
2) Crimes Against Humanity
32. What has been said concerning genocide must not neces-sarily apply to crimes against humanity as well. It is a notorious fact that the class of «crimes against humanity» appeared for the first time in the Charter of the International Military Tribunal at
7 1 Case 331/99. See on that judgment Michael Cottier, «What Relationship
Between the Exercise of Universal and Territorial Jurisdiction ?» The Decision of 13 December 2000 of the Spanish National Court Shelving the Proceedings Against Guatemalan Nationals Accused of Genocide», in Fischer et al. (eds.),
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Nuremberg (Artic1e 6 (2) c)). At that time, the list of such crimes was relatively short. It read:
Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war ; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of domestic law of the country where perpetrated.
Shortly afterwards, the Allied Control Council in Germany, however, extended the list of the Nuremberg Charter. It enacted Law No. 1072 with a view to creating a legal basis for the
pros-ecution in the respective zones of occupation of «war criminal s and other similar offenders». In Article II (1) (c) of the Law, crimes against humanity were defined as follows:
Atrocities and offenses, inc1uding but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.
It appears at first glance that three offences were added, namely imprisonment, torture and rape. Substantively, these addi-tions were not understood as an enlargement of the scope of crimes against humanity, but rather as an illustration of «other inhumane acts». Likewise, one cannot fail to note that the link with war crimes or crimes against peace was severed.
33. Originally, the changes brought about by Control Council Law No. 10 went largely unnoticed. It is the Nuremberg definition of crimes against humanity which received the blessing of the UN General Assembly by Resolution 95 (1) of 11 December 1946. Like-wise, the ILC did not propose any material changes when, man-dated by the General Assembly to prepare a codification of the Nuremberg principles, it submitted the text of such a codification73.
7 2 Of 20 December 1945.
7 3 See Principles of International Law Recognized in the Charter of the Nuremberg
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It remained faithful to this cautious approach when in 1954 it pre-sented the first version of its Code of Crimes against the Peace and Security of Mankind (Article 2 (11))74.
34. In contradistinction to genocide, the definition of which has remained stable over the years, due to its being rooted in the Genocide Convention, the definition of crimes against humanity has seen a dynamic development during the last decade. The ILC departed from its original concept when in 1991, in a second at-tempt to bring a Code of Crimes against the Peace and Security of Mankind into being, it adopted a draft on first reading. This draft mentioned murder, torture, establishing or maintaining over persons a status of slavery, servitude or forced labour, persecution on social, political, racial, religious or cultural grounds –if such crimes were committed in a systematic manner or on a mass scale– and deportation or forcible transfer of population (Article 21)75. The next step was the adoption of the Statute of the
Inter-national Criminal Tribunal for the former Yugoslavia,76 which added
to the original list of 1945 imprisonment, torture and rape (Article 5), thereby reflecting the new elements introduced by Control Counci1 Law No. 10 in 1945. Understandably, the list in the Stat-ute of the International Criminal Tribunal for Rwanda had to be textually identical (Article 3)77. After the concept of crimes against
humanity had thus found renewed official recognition and had been put into practice, the ILC also had to acknowledge that in the perception of the international community the scope of the of-fence had extended much beyond the limits as they were deline-ated in the Nuremberg Charter. Consequently, distancing itself from what it had suggested in 1991, and taking into account the atro-cious experiences of the wars in the former Yugoslavia, it now carne up with a much longer list of criminal acts to be classified as crimes against humanity. One finds as new entries in this list in particular apartheid –defined as «institutionalised discrimination
UN (ed.), The Work of the lnternational Law Commission, 5th ed., New York (1996), p. 167.
7 4 Reprinted ibid., p. 168.
7 5 Yearbook of the ILC 1991, Vol. II Part Two, p. 96. 7 6 Security Council Resolution 827 (1993), 27 May 1993. 7 7 Security Council Resolution 955 (1994), 8 November 1994.
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on racial, ethnic or religions grounds»– as well as forced disap-pearance and enforced prostitution and other forms of sexual abuse (Article 18)78.
35. The latest definition of crimes against humanity can be found in the Rome Statute (Article 7). Again the list has been extended. It now comprises, in addition to what was already in-cluded in the ILC Code of Crimes, forced pregnancy and enforced sterilization, in particular. Instead of accepting the felicitous con-cept of «institutionalised discrimination», the Rome Statute has returned to the backward-oriented blunt term of apartheid which, however, is defined as an «institutionalised regime of systematic oppression and domination by one racial group over any other ra-cial group or groups and committed with the intention of maintain-ing that regime» (Article 7 (2) h)).
36. At Nuremberg, crimes against humanity were not an au-tonomous class of crimes. The Charter of the International Mili-tary Tribunal related them to war crimes or crimes against peace. This legal connection was maintained in the Statute of the ICTY. But one year later, when the Statute of the ICTR had to be pre-pared, it was decided to sever this link which was deemed not to correspond any more to the prevailing legal convictions. And in fact, the jurisprudence of the ICTY has followed this interpreta-tion79 which, furthermore, has now solid foundations. In the Rome
7 8 «A crime against humanity means any of the following acts, when cornmitted
in a systematic manner or on a large scale and instigated or directed by a Government or by any organization or group: (a) Murder; (b) Extermination; (c) Torture; (d) Enslavement; (e) Persecution on political, racial, religious or ethnic grounds; (f) Institutionalised discrimination on racial, ethnic or religious grounds involving the violation of fundamental human rights and freedoms and resulting in seriously disadvantaging a part of the population; (g) Arbitrary deportation or forcible transfer of population; (h) Arbitrary imprisonment; (i) Forced disappearance of persons; G) Rape, enforced prostitution and other forms of sexual abuse; (k) Other inhumane acts which severely damage physical or mental integrity, health or human dignity, such as mutilation and severe bodily harm» (see Yearbook of the lLC 1996, Vol. 11, Part Two, p. 47).
7 9 See the Tadic judgment of the Appeals Chamber of the ICTY, 2 October 1995,
35 ILM (1996), p. 32 at p. 72 para. 141 ; see also judgment of the Appeals Chamber, 14 January 2000, in Prosecutor v. Kupreskic et al., para. 545.
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Statute, crimes against humanity stand on a par with genocide and war crimes. In the legal literature, all voices agree to that «promo-tion» of crimes against humanity.
37. Two different problems arise in connection with crimes against humanity. The first question is whether individual criminal responsibility does in fact exist for all the crimes encompassed in the latest lists, the list enunciated in the Code of Crimes and the list to be found in the Rome Statute. Whereas the acts and activi-ties covered by the Nuremberg Charter do not seem open to any doubt, all the later additions have to be scrutinized one by one as to whether they form part of the body of general international law. Apartheid, to take the most controversial offence, was not recog-nized in the past as a crime against humanity by Western nations. The International Convention on the Suppression and Punishment of the Crime of Apartheid80 has not received a single ratification
from the States of the Western group of States.
38. Even if it can be shown that a specific offence deserves to be characterized as a crime against humanity, it is by no means sure that it falls within the scope ratione materiae of universal jurisdiction. No comprehensive answer can be given. As it emerges from what was pointed out in the beginning of this note, the fact that jurisdiction ratione materiae over these crimes is enjoyed by the ICC is not tantamount to acknowledging universal jurisdiction. What nations may safely entrust to an international tribunal is not necessarily in good hands with domestic courts and tribunals. However, regarding States parties to the Rome Statute the con-siderations expounded in respect of genocide would appear to apply : the principle of complementarity inherent in the Statute presup-poses that the tribunal s of all States parties are in a position, as agents of the system ushered in by the Statute, to take measures of prosecution against anyone charged with having committed crimes against humanity. This inference from the Rome Statute is not opposable, however, to non-parties to the Statute. The exist-ence of a general rule of international law would have to be proven
8 0 Adopted by UN General Assembly Resolution 3068 (XXVIII), 30 November
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on the basis of general practice. While frequently UN General Assembly Resolution 3074 (XXVIII) of 3 December 1973 is re-lied upon as evidence supporting universal jurisdiction, careful pe-rusal of the Resolution rather seems to confirm the contrary con-clusion. In fact, the Resolution emphasizes the active personality principle (op. para. 2) and recommends the territorial principle (op. para. 5). If the drafters had been convinced of the applicabil-ity of the principle of universal jurisdiction, they would not have stressed these bases of jurisdiction which are more limited in scope than universal jurisdiction.
39. Lastly, it should be noted that not every act that breaches rules of conduct established by international law for individual s constitutes a crime against humanity. Only clusters of crimes are prosecutable as crimes under international law81. This is indicated
in the Statute of the ICTY (Article 5) somewhat discretely by the words «directed against any civilian population» and is empha-sized more visibly in the Statute of the ICTR by the phrase «when committed as part of a widespread or systematic attack against any civilian population» (Article 3). The 1996 final version of the Code of Crimes against the Peace and Security of Mankind fol-lows this line by underlining that an offence qualifies as a crime against humanity only if it has been committed «in a systematic manner or on a large scale». Apparently, the Rome Statute has drawn its inspiration from this formula by stating that an offence rises to the level of a crime against humanity if it has been perpe-trated «as part of a widespread or systematic attack directed against any civilian population». It stands to reason why the international community leaves it to individual States to prosecute isolated crimes. Its interests are affected only if a pattern of breaches of the law can be identified which amounts to an en-bloc rejection of stand-ards of civilized behaviour.
8 1 See, in particular, the authoritative statement by 21 renowned human rights
lawyers in their «Memorandum of Law in Support of Concluding that
Apartheid is a Crime against Humanity under International Law», 20 Mich. JIL (1999), p. 271 at pp. 283-284. For a different view see Flavia Lattanzi,
»Crimes Against Humanity in the Jurisprudence of the International Crimi-nal TribuCrimi-nals», in Fischer et al. (eds), InternatioCrimi-nal and NatioCrimi-nal
